Normas Municipales-Plan Regulador Desarrollo Urbano

2.12. Aspecto legal

2.14.3. Normas Municipales-Plan Regulador Desarrollo Urbano

201

Lily Trimboli, 'NSW Court Referral of Eligible Defendants into Treatment (CREDIT) pilot program: An evaluation' (February 2012) 159Contemporary Issues in Crime and Justice, 1 and 3. Available at:

http://www.lawlink.nsw.gov.au/Lawlink/bocsar/ll_bocsar.nsf/vwFiles/cjb159.pdf/$file/cjb159.pdf 202 Ibid, 3-4 203 Ibid, 4 204

Lily Trimboli, 'NSW Court Referral of Eligible Defendants into Treatment (CREDIT) pilot program: An evaluation' (February 2012) 159Contemporary Issues in Crime and Justice, 4. Available at:

http://www.lawlink.nsw.gov.au/Lawlink/bocsar/ll_bocsar.nsf/vwFiles/cjb159.pdf/$file/cjb159.pdf

205 _{NSW Government (Justice and Attorney General), CREDIT Brochure. Available at:}

http://www.lawlink.nsw.gov.au/lawlink/cpd/ll_cpd.nsf/vwFiles/98676_Credit_Brochure_v8LR.pdf/$file/98676_Credit_B rochure_v8LR.pdf

206

Lily Trimboli, 'NSW Court Referral of Eligible Defendants into Treatment (CREDIT) pilot program: An evaluation' (February 2012) 159Contemporary Issues in Crime and Justice, 9. Available at:

3.6.1 Queensland Courts Referral (QCR)

This program involves a bail-based process that allows defendants to be linked to non-government organisations and government agencies, enabling them to focus on the origins of the offending behaviour. Anyone with a mental illness, intellectual disability or cognitive impairment is able to apply for referral to the program, provided they are appearing in the Roma Street Arrest Courts of the Brisbane Magistrates Court, have been granted bail or are eligible for bail, and are in need of services that will assist them with issues concerning their disability.207

However, a defendant will be unable to participate in the program if their charges necessitate an indictment, they are unwilling to participate, or the appropriate service provider/s do not have capacity to take the defendant on.208

The goals of the program are to:

 "provide short term assistance to defendants appearing on charges who have a health and/or social problem through referral to treatment or community support services; and

 reduce the likelihood of long term re-offending."209

The defendant is connected with the QCR Case Assessment Group, where they will be interviewed to determine their eligibility and core issues, as well have the most appropriate treatment or service identified. This information is then given to the Magistrate for their final decision as to eligibility. "A Magistrate may impose bail conditions that a defendant engage with the QCR process…A defendant's failure to comply with a condition of bail may result in [them] being charged with a further criminal offence for breach of bail and they may be removed from the QCR process."210This does not mean that people with disability are excluded.

3.7 South Australia

3.7.1 Magistrates Court Diversion Program (MCDP)

This program is aimed at adults accused of a minor indictable or summary offence who's intellectual or mental functioning has been impaired because of mental illness, intellectual disability, a personality disorder, acquired brain injury, or a neurological disorder.211

MCDP aims to:

1. "Prevent further offending behaviour by providing access to early assessment and interventions that address mental health or disability needs of defendants and their offending behaviour;

207

Department of Justice and Attorney General, 'Courts Innovation Program Queensland Courts Referral (QCR)'. Available at:http://www.courts.qld.gov.au/__data/assets/pdf_file/0009/205587/cip-fs-qld-courts-referral-qcr.pdf 208 Ibid 209 Ibid 210

211

Courts Administration Authority of South Australia, 'Magistrates Court Diversion Program'. Available at:

http://www.courts.sa.gov.au/OurCourts/MagistratesCourt/InterventionPrograms/Pages/Magistrates-Court-Diversion- Program.aspx

2. Provide assistance to the court in the identification and management of people with a mental impairment in the court system; and

3. Provide a diversion option in the Magistrates Court, for people who may otherwise plead a mental impairment defence under section 269 of the Criminal Law Consolidation Act (1935)."212

To be eligible for the program, it must be established that there is a connection between the mental impairment and the offending behaviour. The participant must also be willing to plead guilty to the most serious charges.213 "A Clinical Advisor (a registered psychologist) must be satisfied at the preliminary assessment that the person understands the program and consents to being involved."214 Referral can be made from a number of sources, including a magistrate, lawyer, prosecutor, police officer, guardian, service providers. Self-referral is also possible. The magistrate then officially activates the referral at the first hearing.215

The program consists of 4 primary steps: 1. Referral;

2. Assessment and Acceptance; 3. Treatment and Review; and 4. Finalisation of Matters.216

The program usually runs for six months. During this period, the offender is required to attend court roughly every two months (more frequently if necessary) to allow the magistrate to monitor compliance and make any other necessary orders. Section 19C of theCriminal Law (Sentencing) Act 1988(SA) allows a magistrate to release a successful participant without conviction or penalty. Other outcomes include "suspended sentences with lengthy good behaviour bonds and supervision orders with treatment, program attendance and counselling conditions."217

The program operates in four regional courts: Murray Bridge, Mount Gambier, Port Augusta and Whyalla.218

3.7.2 Treatment Intervention Program (TIP)

212 _Ibid 213

Ibid 214

Elizabeth Richardson and Bernadette McSherry, 'Diversion down under - Programs for offenders with mental illnesses in Australia' (2010) 33International Journal of Law and Psychiatry, 250

215

Law Reform Commission of Western Australia, 'Chapter Three: Mental Impairment Court Intervention Programs' (June 2008)Court Intervention Programs - Consultation Paper - Project No. 96, 100. Available at:

http://www.lrc.justice.wa.gov.au/_files/P96_Forepages.pdf

216

For more information on these steps, please see:

http://www.courts.sa.gov.au/OurCourts/MagistratesCourt/InterventionPrograms/Pages/Magistrates-Court-Diversion- Program.aspx

217 _{Law Reform Commission of Western Australia, 'Chapter Three: Mental Impairment Court Intervention Programs' (June} 2008)Court Intervention Programs - Consultation Paper - Project No. 96, 100-101. Available at:

http://www.lrc.justice.wa.gov.au/_files/P96_Forepages.pdf

218

Courts Administration Authority of South Australia, 'Magistrates Court Diversion Program'. Available at:

http://www.courts.sa.gov.au/OurCourts/MagistratesCourt/InterventionPrograms/Pages/Magistrates-Court-Diversion- Program.aspx

TIP integrates evidence based practices to address recidivism and manage mental health symptoms. The program aims to reduce re-offending, improve mental and physical health and reduce drug use. "It targets adults who have been charged with a minor indictable or summary offence, where there is a link between the offending behaviour and mental impairment and/or substance abuse."219 Mental impairment includes mental illness, intellectual disability, a personality disorder, an acquired brain injury, or a neurological disorder.220

The TIP program extends over 6 months. The program may involve periodic court reviews, linking participants to community treatment services, supervisor contact, drug testing, and rehabilitation plans. Successful completion of the program is determined by the participant having "no fresh charges, attended and engaged in the treatment sessions, and demonstrated a willingness and ability to cease or significantly reduce substance abuse."221

TIP has replaced the MCDP program in those courts where it operates, which is all metropolitan Magistrates Courts: Adelaide, Christies Beach, Elizabeth, Holden Hill and Port Adelaide. There is also an equivalent in the Youth Court, the Youth Court Treatment Intervention Program.222

3.8 Tasmania

There are no specific court-based diversion programs for people with an intellectual, cognitive or psychosocial disability or an acquired brain injury. There is a Mental Health Diversion List (MHDL) Program operating in the Hobart & Launceston Magistrates Courts and this will be discussed below in the section on therapeutic courts.

3.9 Victoria

3.9.1 Mental Health Court Liaison Service (MHCLS)

MHCLS offers assessment and advice services for those attending the Magistrates' court on criminal charges. It also facilitates access to treatment and suitable services through cooperation with relevant agencies. To access the program, the person must "have a mental illness and display concerning behaviour that is thought to be related to mental illness."223

The objectives of the program include diverting offenders with a mental illness out of the criminal justice system, placing them instead into suitable mental health treatment and thereby reducing recidivism levels.224

A referral can be made from a range of sources, including magistrates and other court personnel, police, legal practitioners, treatment agencies, court welfare services and disability services, family and carers. Self-referrals are also possible.225

219

Courts Administration Authority of South Australia, 'Treatment Intervention Program'. Available at:

http://www.courts.sa.gov.au/OurCourts/MagistratesCourt/InterventionPrograms/Pages/Treatment-Intervention- Program.aspx

220

Ibid 221

Courts Administration Authority of South Australia, 'Treatment Intervention Program'. Available at:

http://www.courts.sa.gov.au/OurCourts/MagistratesCourt/InterventionPrograms/Pages/Treatment-Intervention- Program.aspx

222

Ibid 223

Forensicare, Mental Health Court Liaison Service Brochure. Available at:

http://www.forensicare.vic.gov.au/assets/pubs/Mental%20Health%20Court%20Liaison.pdf

224

Magistrates' Court of Victoria, 'Mental Health Court Liaison Service'. Available at:

http://www.magistratescourt.vic.gov.au/jurisdictions/specialist-jurisdictions/court-support-services/mental-health-court- liaison-service

MHCLS is administered by Forensicare, the Victorian Institute of Forensic Mental Health, and operates at the Melbourne, Ringwood, Heidelberg, Dandenong, Frankston, Broadmeadows and Sunshine Magistrates' Courts.226

3.9.2 Court Integrated Services Program (CISP)

"The program provides accused persons with access to services and support to reduce rates of re- offending and promote safer communities." It is run at the Melbourne, Latrobe Valley, and Sunshine Magistrates’ Courts.227

CISP offers a multi-disciplinary team-based method of valuation and referral to treatment and support services, such as acquired brain injury services, mental health care, and disability support. It also provides different levels of support depending on the required needs of the participant and case management for higher risk participants.228

CISP's objectives are to:

 "Provide short term assistance before sentencing for accused with health and social needs;

 Work on the causes of offending through individualised case management;

 Provide priority access to treatment and community support services; and

 Reduce the likelihood of re-offending."229

Any party involved in a court proceeding can be referred to CISP. Referrals can come from a magistrate, court staff, legal representatives, police officers, support services, family, friends or by self-referral. Participation in the program is available irrespective of a plea being entered or an intention to plead guilty. The participant must consent to be involved however, and must be on summons, bail or remand pending a bail hearing.230

3.10 Western Australia

3.10.1 Intellectual Disability Diversion Program (IDDP)

This program is intended to divert adults with an intellectual disability into suitable support services rather than through the court system.231 The aims of this program are to "reduce recidivism among the

225 _{Forensicare, Mental Health Court Liaison Service Brochure. Available at:}

http://www.forensicare.vic.gov.au/assets/pubs/Mental%20Health%20Court%20Liaison.pdf

226

Magistrates' Court of Victoria, 'Mental Health Court Liaison Service'. Available at:

http://www.magistratescourt.vic.gov.au/jurisdictions/specialist-jurisdictions/court-support-services/mental-health-court- liaison-service

227

Magistrates' Court of Victoria, 'Court Integrated Services Program'. Available at:

http://www.magistratescourt.vic.gov.au/jurisdictions/specialist-jurisdictions/court-support-services/court-integrated- services-program-cisp

228

Ibid 229

Magistrates' Court of Victoria, 'Court Integrated Services Program'. Available at:

http://www.magistratescourt.vic.gov.au/jurisdictions/specialist-jurisdictions/court-support-services/court-integrated- services-program-cisp

230

Ibid 231

Jacqueline Joudo, 'Responding to substance abuse and offending in Indigenous communities: review of diversion programs' (2008)Australian Institute of Criminology - Research and Public Policy Series No. 88, 53. Available at:

intellectually disabled offender group, to reduce the rate of imprisonment by diversion and appropriate dispositions and to generally improve the ways in which the justice system deals with intellectually disabled offenders."232

Referrals can be made by anyone, including family members, police officers, members of the judiciary, prosecutors, mental health nurses and Community Corrections officers. To participate in the IDDP, the person must have a diagnosed intellectual disability, be accused of a minor, non-violent offence, and appear at the Central Law Courts. The accused needs to also volunteer to participate.233 Once eligibility is established, the matter is adjourned in order for an individualised intervention plan to be developed in cooperation with the accused, their family and support services, tailored to the address the core underpinnings of the offending behaviour. Progress reports are given to the court during the duration of the program, which usually runs for six months.234 "Where an intervention plan is successfully completed, the matter is finalised, with participants receiving a reduced sentence and a certificate of participation…Conviction will result in a criminal record, but a spent conviction is normally imposed."235 A spent conviction means that the person may not need say that they were charged with and convicted of an offence, except in certain exemplary circumstances, such as when appointed or being considered for appointment to a position where the responsibilities may necessitate contact with children in a school, community kindergarten, college or hostel. It is unlawful for an employer, contractor or similar body to discriminate against someone for having a spent conviction.236 Advantages And Disadvantages Of Diversion

The New South Wales Law Reform Commission has identified that "much of the evaluative data available [on the effectiveness of diversion] is anecdotal or equivocal. In particular, there is a lack of research providing comprehensive evaluations of the outcomes of diversionary programs, particularly evaluations of specific program outcomes."237 Nevertheless, advantages and disadvantages of diversion are available.

3.11 Advantages of diversion

3.11.1 Benefits to the criminal justice system

Diversion not only improves the efficiency of the criminal justice system by reducing the number of people going through the court system, but it may also increase the awareness of those working in the field as to the needs of those with disability (amongst others). It also reduces the use of remand and

232 _{Law Reform Commission of Western Australia, 'Chapter Three: Mental Impairment Court Intervention Programs' (June} 2008)Court Intervention Programs - Consultation Paper - Project No. 96, 105. Available at:

http://www.lrc.justice.wa.gov.au/_files/P96_Forepages.pdf

233

234

http://www.lrc.justice.wa.gov.au/_files/P96_Forepages.pdf

235

236

Legal Aid Western Australia, 'What Spent Convictions Orders Do' (2010). Available at:

http://www.legalaid.wa.gov.au/InformationAboutTheLaw/crime/criminalrecords/Pages/SpentConvictionOrders.aspx

237

New South Wales Law Reform Commission, 'Report 135: People with cognitive and mental health impairments in the criminal justice system - Diversion' (June 2012) 33. Available at:

facilitates non-custodial sentences being ordered in suitable cases, thereby reducing the number of people being sent to prison.238

3.11.2 Reducing reoffending

This is the key aim of many of the programs outlined above and appears to be achieved by providing various types of interventionist services to those with disability (amongst others), thereby allowing them to address the core issues related to the offending.

3.11.3 Access to support services

Another advantage of diversion is that it provides those with disability access to treatment, support and other services that they may have been unaware of or would otherwise be unavailable without a referral.

3.12 Disadvantages of diversion

3.12.1 Net-widening effects and sentence escalation

Although a benefit of diversion is that it may increase the availability of services for people with disability, this may also turn into a disadvantage. Some commentators have voiced concerns that diversion "could have the paradoxical result of entrenching more people in that system due to a desire to provide them with programs that would not otherwise be available if they were not charged with criminal offences."239 Likewise, sentence escalation could be a negative consequence of diversion if a magistrate enforces a more severe sentence to bring a person with disability within the eligibility criteria to participate in an intervention program.240

3.12.2 Serious offending

As is clear from the above list of programs, court diversion is only an option for minor or summary offences and is therefore considered inappropriate for serious or indictable offences. "The view may be taken that there are some offences that are so serious that punishment is inevitable, and diversion is not appropriate…However…in some cases, an impairment may have a significant impact on the way in which seriousness is judged."241 Therefore, an entire group of people with disability facing criminal charges are ineligible to participate in these programs and obtain the benefits of the services they provide. It should be noted, however, that there are a range of other services available for those charged with, or sentenced for, indictable offences.

3.12.3 Coercion and consent

Concern has been raised by some commentators, such as A Freiberg, regarding the voluntary nature of entering into diversion programs. There is a fear that people with disability are being coerced into partaking or that involvement comprises onerous obligations, particularly where the person has not

238 _{Ibid, 34-35} 239

New South Wales Law Reform Commission, 'Report 135: People with cognitive and mental health impairments in the criminal justice system - Diversion' (June 2012) 41. Available at:

http://www.lawreform.lawlink.nsw.gov.au/agdbasev7wr/lrc/documents/pdf/r135.pdf. 240

Ibid 241

been found guilty or does not need to plead guilty to participate.242 "Defendants may be encouraged, or feel under pressure, to plead guilty, which may derogate from a proper adjudication of guilt."243 To overcome this, it is imperative that participation is voluntary, the participant clearly understands what the program involves and a guilty plea is not required.

3.12.4 Unfairness or disadvantage for participants

The requirements of a diversion program can sometimes be more onerous than going through the criminal justice system. "For example, participation in a diversion program could involve intensive monitoring by a court or a case manager, attending a service provider, taking medication and so on, over a period of several months."244 The issue is that, although the objective of the court may be rehabilitative, the person with disability may deem the requirements of the diversion program to be punitive and excessive compared to what would be enforced for a person without disability, therefore

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